Court File and Parties

Court of Appeal for Ontario

Date: 2022-11-29 Docket: C68888

Judges: Lauwers, Paciocco and Zarnett JJ.A.

In the Matter of: Mark Sheldon Roberts

An Appeal Under Part XX.1 of the Code

Counsel: Ernest J. Guiste, for the appellant, Mark Sheldon Roberts Manasvin Goswami, for the respondent, His Majesty the King Michele Warner, for the respondent, Centre for Addiction and Mental Health

Heard: November 25, 2022

On appeal from the disposition of the Ontario Review Board dated October 22, 2020.

Reasons for Decision

[1] Mark Sheldon Roberts appeals from the disposition of the Ontario Review Board dated October 22, 2020 ordering that he remain subject to a detention order with privileges including community living. The appeal did not proceed in a timely way because of the COVID-19 pandemic, which led Pardu J.A. to issue an order under s. 684 of the Criminal Code, R.S.C., 1985, c. C-46, appointing counsel to represent the appellant. However, she noted that the appeal “may well be moot”. The Crown argues that the appeal is moot.

[2] Since the 2020 disposition under appeal, the Board made a disposition order concerning the appellant on February 17, 2021; his appeal of the 2021 disposition was dismissed by this court on December 8, 2021: Roberts (Re), 2021 ONCA 869, 2021 CarswellOnt 18227. Thus, the Board’s 2020 disposition is no longer operative, having been superseded by the 2021 disposition.

[3] As a general principle, this court does not decide moot cases: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; Abernethy (Re), 2021 ONCA 509, 2021 CarswellOnt 10355, at para. 4; Halat (Re), 2019 ONCA 112, 2019 CarswellOnt 1885, at paras. 7-9. This principle applies especially to Review Board cases. As this court noted in Halat, at para. 11, “because of the continuing jurisdiction of the Board over the appellant, it is important that this court only review dispositions of the Board where it can give a remedy for any reviewable error.”

[4] The Crown submits that this appeal is based on a stale factual record that has been overtaken by significant subsequent events. Since the 2020 disposition under appeal, the appellant has incurred new criminal charges for harassing a cashier at the grocery store, has been re-admitted to the Centre for Addiction and Mental Health due to the new charges, and has been transferred to a secure forensic unit at the hospital.

[5] Consistent with the analysis in Borowski, at pp. 358-63, it is clear that the appeal is moot because the 2020 disposition of the Board no longer governs or applies to the appellant. It is spent and of no further effect. There is therefore no live issue between the parties in relation to that disposition. This court cannot order any remedy respecting that disposition and so must decline to hear the appeal: Halat, at para. 11.

[6] The appeal is dismissed as moot.

“P. Lauwers J.A.”

“David M. Paciocco J.A.”

“B. Zarnett J.A.”